Terror and Slow Justice: Dragging Libya to court for a deadly 1989 hijacking.

originally published in The Weekly Standard, Sept 4 2017

Few Americans noticed, but this past June, Muammar Qaddafi’s longtime spy chief Abdullah Senussi was apparently released from prison in Tripoli, where he had been sentenced to death in July 2015 for decades of officially sanctioned murders of his fellow Libyans. If Senussi was not released—everything is murky in Libya—he was at least seen at a festive meal at a Tripoli hotel.

Justice has been a long time coming to Senussi, one of six Libyans convicted in a French court in 1999 for the murder of 170 people on UTA Flight 772, the “forgotten flight” of the title of Stuart Newberger’s book. The DC-10 had left Brazzaville, Congo, on September 19, 1989, and reached its first stop, N’Djamena, Chad. It took off from N’Djamena for its final stop, Paris, but 45 minutes after takeoff a bomb exploded and the plane broke into four sections that plunged from the sky, some of the passengers likely still conscious when they smashed into the Niger desert.

Newberger, a lawyer who represented the seven Americans killed on Flight 772, writes that it is unlikely Senussi will leave Libya alive. But his own narration of decades of terror by Qaddafi and others, and decades of appeasing international responses, should make us wonder. One condition of the release of the American hostages from Iran in 1981 was that they could not sue Iran. Many laws have been passed since to assist victims of terror in seeking redress in civil lawsuits in the United States, but as Newberger’s UTA 772 case shows, legal judgments can always be overtaken by political events. The results are rarely fair to the victims of terrorism and their loved ones.

Newberger is most engrossing in describing the work supervised by France’s Jean-Louis Bruguière, an 11th-generation investigating magistrate, which he calls with some justice “one of the greatest detective stories of all time.” The plane’s debris—and the passengers’ remains—were scattered over a 50-by-5-mile area of remote desert in an era before GPS, mobile phones, Google Earth, and many other contemporary tools. Remarkably, within four weeks the remains of a suitcase were found; it tested positive for plastic-explosive residue.

Bruguière leveraged France’s good connections in Congo, where it turned out the bomb entered the UTA plane in a suitcase carried by a Congolese, Apollinaire Mangatany. His small group of revolutionaries aimed to overthrow Mobutu, the dictator of neighboring Zaire, and they accepted assistance from Libya’s Brazzaville embassy. In revenge for France’s support of Chad in the recently ended Libya-Chad war, Mangatany’s Libyan handlers supplied him with a suitcase containing explosives, telling him it was intended to blow up the French plane when it sat on the runway in N’Djamena. Mangatany may not have been killed in the explosion: His remains, along with those of over 60 of the other passengers, were never identified, and it’s possible he got off the plane in Chad and disappeared.

By June 1990, physical evidence surfaced indicating Libya’s involvement. Newberger details the patient police work that tied a tiny piece of green plastic circuit board found at the crash site to the German middleman who sold 100 Taiwanese-made timers to one of Abdullah Senussi’s subordinates in the Libyan Mukhabarat (intelligence service). The Germans apparently had thought they were providing timers for battery-operated runway lights on remote desert airstrips in Libya.

In October 1991, Bruguière issued international arrest warrants for four Libyans—including Senussi. But none was extradited: Libya doesn’t allow its citizens to be tried for crimes outside the country, and Libya’s lawyers pointed out at the time that France doesn’t either. Eventually Bruguière charged Senussi and five other Libyans with destroying UTA 772; they were convicted in absentia in 1999.

Meanwhile, in November 1991 a Scottish prosecutor had indicted Abdelbaset al-Megrahi and Lamin Khalifah Fhimah, apparent Libyan Mukhabarat agents, for the bombing of Pan Am Flight 103 over Lockerbie, Scotland, on December 21, 1988, which resulted in the deaths of 259 passengers and crew, as well as another 11 people on the ground. The majority of victims aboard that flight were American and the crash site was easy to reach, so it received much more media attention than UTA 772. Yet even for Pan Am 103 it would take until 2003 for a compensation deal to come together, and it was not finalized until 2008.

Newberger entered the story in April 2002 when he was contacted by Douglas Matthews, the billionaire owner of the DC-10 leased to UTA. Matthews wanted to bring a civil suit against Libya for the destruction of his $40 million aircraft, and his lawyer knew of Newberger.

Newberger had become famous in 2000 for winning $40 million in compensatory damages for newsman Terry Anderson, held hostage for seven years by Iran. This lawsuit was only made possible by the Antiterrorism and Effective Death Penalty Act of 1996 and by 1996 amendments to the 1976 Foreign Sovereign Immunities Act. These measures, enacted in response to the 1993 World Trade Center bombing and the 1995 Oklahoma City bombing, allowed for the waiving of sovereign immunity to bring lawsuits against states that sponsored terrorism, and allowed commercial assets of these countries to be seized in the United States. It took the passage of still another law for Anderson to collect his judgment from $400 million in Iranian government funds frozen in the United States.

The UTA 772 suit was filed in 2003 and took its name, Pugh v. Socialist People’s Libyan Arab Jamahiriya, from Robert L. Pugh, a diplomat who survived the U.S. embassy attack in Beirut in 1983 and was ambassador to Chad in 1989. His wife Bonnie had been one of the seven Americans killed on UTA 772. It took until 2008, with Libya delaying every step of the way, but Pugh resulted in a massive judgment of around $6 billion in favor of the American plaintiffs. Here is where Newberger and the families involved in his case find out that “politics was more powerful than law”—because (spoiler alert) a political agreement ended up having a large effect on the settlement. The relatives who participated in the Pugh suit were each eligible to receive $10 million, just a tenth of what they would have received under the court judgment against Libya, had it been allowed to stand.

Newberger’s book is at its best—clear and fast-paced—when discussing the details of policework. The book would have benefited, however, from an editor who could have steered the author away from some formulaic descriptions and clichés. Also, it would have been compelling to hear the voices of the Pugh plaintiffs that Newberger represented, were they willing be interviewed and quoted. And, given the complicated nature of the story Newberger is telling, the absence of a timeline is keenly felt.

In the years since the Pugh case was decided, the struggle to use our legal system to bring terrorists and their supporters to justice has continued. A law passed in 2016—the Justice Against Sponsors of Terrorism Act, which was enacted in the only override of a presidential veto in the Obama years—allows federal courts to exercise jurisdiction over foreign states charged with supporting terrorism, regardless of whether the state is designated a sponsor of terrorism. This change in the law made it possible, earlier this year, for many of the families of the victims of the September 11, 2001, terrorist attacks to sue Saudi Arabia in civil court. This is a welcome development, but if there is any lesson to be found in Newberger’s book, it is that expectations should be tempered, since justice can be very slow in coming.

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